N.Y. Senate, Assembly Both Include Raises to Assigned Counsel Rates in Their Budgets

N.Y. Senate, Assembly Both Include Raises to Assigned Counsel Rates in Their Budgets

3.22.2022

By Cheyenne Burke

The New York State Senate and Assembly released state budgets last week, and both include language to raise the assigned counsel rates in New York State for the first time in 18 years.

As courts and administrators struggle to find attorneys who are willing to take on the work for such low rates, this legislation is long overdue.

For those unfamiliar with the inner workings of Albany’s less than straightforward  budget process, these budgets are the Assembly and Senate’s version of the state budget developed in response to the governor’s proposed budget released in January.  The spending plans operate as the opening positions of the houses for budget negotiations that will take place between the governor, Senate and Assembly over the next week and a half.  A final budget with agreed upon language is due April 1.

While both houses have supported state-funded raises to assigned counsel rates, there are some differences.

First, the similarities:

•  Removing compensation caps on 18-B and Attorney for the Children  work
•  Doubling the assigned counsel rates. The proposed amendments would raise the misdemeanor representation rate to $120 per hour and the felony representation rate to $150 per hour.  Rates for AFC work under the Judiciary Law will double to $150 per hour under the legislation
• State funding of the raises. Both proposals require the state to fully fund the increases to the rates to avoid placing unfunded mandates on the counties.

Now, the differences:

• Automatic review and increases of the rates annually.  The Senate version provides an annual cost of living adjustment, a provision strongly supported by the New York State Bar Association to ensure that adequate compensation for legal representation is not eroded by inflation.  The Assembly version raises the rates but provides no method for annual adjustment or review
•  Effective date: Under the Assembly version, the changes to law would take effect almost immediately if included in the budget, or April 1.  Under the Senate version, the changes would not take effect until January 2023.

The Senate version offers the better approach to addressing the assigned counsel crisis.  Ensuring state-funded raises are on par with federal rates, while also creating a meaningful mechanism to allow for annual review and adjustment that accounts for the fiscal realities of inflation is crucial to the legislation making its intended impact.  If legislation is enacted without some method for continual review and adjustments of the rates, the problems finding attorneys to serve on the panels will persist.

NYSBA’s Government Relations Team is lobbying members of the legislature and pushing for the Senate version, which will raise the rates and bring necessary reform to the assigned counsel programs.